Obtaining a Divorce Following Separation
What’s the process for obtaining a divorce following separation? Our divorce lawyers in Brisbane at LGM Family Law explain.
In Australia, there is only one ground for divorce which is that the marriage has broken down irretrievably (s. 48).
There must be a substantial breakdown of the relationship. In order to determine if the relationship has broken down irretrievably, consideration is given to the relationship as it existed before the alleged breakdown and the relationship between the parties after the alleged breakdown.
Divorce orders can be made by the Court where they are satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months (s. 48). The day on which separation occurred is not included in the calculation of that 12 month period.
In Pavey and Pavey, the Court said that separation meant more than physical separation and involved the breakdown of the marital relationship. It was necessary that one or both spouses formed the intention to “sever or not to resume the marital relationship” and acted on that intention or alternatively acted as if the marital relationship had been severed.
Parties may be living separately and apart even though they continue to live under the same roof.
Physical separation by itself is not enough to meet the requirements of s. 48(2) as parties to a marriage may be obliged for work or other reasons to live apart but the relationship may nonetheless be a functional relationship.
Elements to Establish a Separation
Three elements are required in order to establish separation, being:
- One or both of the parties intend to sever or not to resume the relationship;
- The parties act on the intention or act in a manner as though the relationship has ended;
- If one party only considers that the relationship is at an end then that party must communicate that party’s attitude to the other party.
The parties to a marriage may be separated and be considered as living separately and apart notwithstanding that they live in the same residence or that either party provides some household services to the other (s. 49(2)).
Practically, where parties live in the same residence, it can sometimes be more difficult to show that they have in fact separated. It will assist to demonstrate separation in fact where parties are sleeping in separate room; perform only limited household services for each other and where either or both of them have communicated to family and friends that they are separated and they by and large socialise separately. Other factors that will assist in determining that a former couple is in fact separated will be the establishment of separate bank accounts and arranging their financial affairs separately from each other.
There is no formula that requires that each of these items are addressed. It is a question of fact and degree as to whether parties are in fact separated according to law. The greater the degree of separation of their lives, the more likely it is that a Court would be satisfied that parties are separated.
It is advisable if you are separating from your spouse that you clearly communicate to your spouse that you are separated and that you have some written evidence of the date of that communication having been made. It will be important then that you do conduct your life in a manner that clearly demonstrates that you are living separately and apart from that time.
I Want to Obtain a Divorce Following Separation
It will be important once you are separated that you also obtain a final legally binding property settlement. This may be achieved by way of a consent order (without the need to actually go to Court) where you and your former spouse reach agreement about how property will be divided.
If you are thinking of obtaining a divorce following separation or require assistance to finalise a property settlement with your former spouse, contact our experienced Divorce Lawyers in Brisbane at LGM Family Law. Our team of Brisbane Divorce Lawyers are here to help and offer a free initial 15-minute call. You are also welcome to book a fixed-fee initial consultation with us for more detailed advice tailored to your circumstances.
No matter your situation, we will assist you to resolve your family law issues and leave you free to get on with life!